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FDIC & JPMORGAN CHASE BANK NA'S P&A AGREEMENT DOES NOT IDENTIFY THE NOTES & MAY NOT BE THE TRUE P&A.
The Purchase &Assumption Agreement between the FDIC & JPMorgan Chase Bank, NA for Washington Mutual Bank does not specifically identify Plaintiff’s Note. And . . .
UPDATE -- June 19, 2012:
Word on the street through a lawsuit filed on behalf of Scott Jolley in California Superior Court in Marin County is that there is purported evidence possibly indicating that FDIC & JPMorgan Chase Bank entered into a different version of the P&A for WaMu than the 39 page version being filed in courts of law across the country. The true copy is purported to be roughly 120 pages -- not 39 pages.
A Murder of Crows
This murder of crows does not want the true P&A made public. Why? Is this Chase's Achilles Heel?
U. S. DISTRICT COURT CASE # CV10-0815 0D2 (FFMx)
JAVAHIERI V. JPMORGAN CHASE BANK, NA et al:
Order GRANTING in Part & DENYING in Part Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint file April 28, 2011
JPMorgan Chase Bank, NA’s assertion that the P&A Agreement suffices to establish their ownership of the Note is no longer viable. Indeed, the P&A Agreement does not specifically identify Plaintiff’s Note. (See Dkt. No. 10, Exh. 2.) The Court finds that Plaintiff has now sufficiently alleged that JPMorgan Chase Bank, NA did not own his Note and therefore did not have the right to foreclose.
From Plaintiff’s memorandum of law attached:
WRONGFUL FORECLOSURE – SECOND CAUSE OF ACTION
JPMorgan Chase Bank, NA (hereafter Chase) offers no proof that it acquired an interest in Plaintiff's residence. In this Motion to Dismiss, once again the only document offered to support its claim is the P&A Agreement. Chase asks the court to leap to the conclusion that Washington Mutual Bank (hereafter WMB) was the Lender on September 25, 2008, the date that the Purchase & Assumption Agreement was signed, even though the likelihood of that, given WMB's history of securitization, is less than 50%. The challenge facing homeowners is to prove facts to trial courts at the pleading stage.
Wall Street and the Financial Crisis - Anatomy of a Financial Collapse, the U.S.
Senate Permanent Subcommittee on Investigations (April 13, 2011) 650-page report,
was released following an 18-month investigation into the causes of the financial
crisis. WMB was the leading case study in the report—183 pages (28%) of the report were devoted to WMB—the worst of the worst. The report is readily
available for download at the Senate Subcommittee's website. 2
Defendant alleges in its Purchase & Assumption Agreement that "JPMorgan obtained its rights under the loan from the FDIC" (P&A 4:5). Whether or not the Loan was an asset of WMB on September 25, 2008, a key issue in this case, is not mentioned. Chase asks the court to find, without evidence, a fact that it must prove in order to take the property. Nothing in the P&A Agreement shows whether WMB had any beneficial interest in Plaintiff's loan on September 25, 2008. The court is asked to guess the answer and dismiss the case. Then Plaintiff will lose his house.
Where factual findings or the contents of the documents are in dispute, those
matters of dispute are not appropriate for judicial notice. Caravantes v. California
See Stephen R. Buchenroth and Gretchen D. Jeffries, Recent Foreclosure Cases: Lenders Beware (June 2007); Wells Fargo v.Jordan, 914 N.E.2d 204 (Ohio 2009) (“If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”);
Chase argues that it obtained the right to sell Plaintiff's property when it acquired
Plaintiff's Opposition to Motion to Dismiss Second Amended Complaint
- 17 -
WMB's assets through the P&A Agreement for $1.9 billion. Chase could only acquire what WMB owned. WMB no longer owned Plaintiff' mortgage. Perhaps the identity of the Lender can be tracked down, but it remains unknown.
Defendant argues that Chase assumed no liability for actions taken by WMB prior to September 25, 2008 in regard to the subject loan. This obscures the issue. Plaintiff alleges that WMB did not have any interest in Plaintiff's residence on September 25, 2008. His property was not an asset of WMB, and therefore Chase could not acquire any interest in Plaintiff's residence. This is not a liability issue.
Chase seems to assert that it can foreclose on any property under the P&A Agreement on the grounds that WMB might have had a beneficial interest in the property at some time, even though WMB sold most of its mortgages to investors.
Plaintiff alleges in ¶ 62 of the SAC that WMB securitized Plaintiff's single family
residential mortgage loan through Washington Mutual Mortgage Securities Corp. If WMB retained no beneficial interest in the promissory note when it brokered the deal, Chase cannot acquire what WMB never had. If WMB transferred all of its beneficial interest in the note at the inception of the loan and never entered it in its books as an asset, and entered no corresponding reserve on its ledger as a liability in the event of Plaintiff's default, then Chase did not acquire ownership of the note by purchasing WMB's assets because WMB had nothing to sell. This is a question of fact. Plaintiff alleges in ¶ 30 of the SAC that Chase does not have standing to enforce the Note because Chase is not the owner of the Note, not a holder of the Note, and not a beneficiary under the Note.
If Chase has no beneficial interest in the note, Chase can only proceed if it
proves that it is the servicer and joins the owner of the note in this action. To dismiss
this lawsuit before ascertaining the truth of these allegations is unwarranted. Chase
could produce evidence in its files, but it prefers to rob Plaintiff of his day in court
Neither WMB, Chicago Title Company, California Reconveyance Company (hereafter CRC), Chase, nor anyone else has recorded a transfer of a beneficial interest in the Note (or any other interest in the) Property to Chase. (SAC ¶ 29). Chase does not have standing to enforce the Note because Chase is not the owner of the Note, Chase is not a holder of the Note, and Chase is not a beneficiary under the Note. Chase does not have
capacity to exercise a power of sale. Chase does not claim to be a holder of the note.
The core issue in this case is to ascertain who is the Lender. Plaintiff did not borrow money from Chase. Plaintiff's pre-discovery inquiries indicate that WMB did not own the loan on September 25, 2008, and therefore Chase is not the Lender. This issue cannot be brushed aside because California is a non-judicial state.
Washington Mutual Bank (WMB) remained the Lender for no more than a few days until WMB sold the loan. Thereafter, it was, at best, a servicer of the loan. The Lender was the investment trust that put up the money.
Foreclosure of the Wellworth Property was commenced by CRC, having been
appointed trustee on April 30, 2010, by Chase. Chase was not the Lender.
The Deed of Trust (SAC Exhibit 4) states on page 13, paragraph 24: "Lender, at its option, may from time to time appoint a successor Trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the Property is located." (SAC Exhibit 8, ¶24).
Defendant asks the Court's approval to proceed with foreclosure of Plaintiff's
property on the basis of a NOD and NOTS filed by CRC, a wholly owned subsidiary
of Chase (SAC ¶16) that was appointed as successor Trustee by Chase even though
Chase is not the Lender and has not revealed who the Lender might possibly be.
(A) all of the beneficiaries under the trust deed, or their successors in interest…
Nowhere does the Civil Code allow for assignment of a Deed of Trust by the assignee acting on its own behalf.
Since Chase is not the Lender, it would violate the terms of the Note and the Deed of Trust to dismiss the SAC and allow Chase to foreclose as a result of a forged Assignment of Deed of Trust signed by someone working for the Assignee.